IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110014741 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his undesirable discharge (UD) to a fully honorable discharge. 

2.  The applicant states he was unable to understand the orders given to him at the time due to his defective hearing.  

3.  The applicant provides the back pages of his enlistment document and separation physical examinations. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant's records show he underwent an enlistment physical examination on 19 July 1972 that noted he had defective hearing; but he had no disqualifying defects.  He was found fully qualified for enlistment or induction.

3.  On 19 July 1972, he enlisted for 3 years.  He successfully completed basic combat and advanced individual training at Fort Jackson, SC, and he was awarded military occupational specialty 71B (Clerk - Typist).

4.  He served in Germany from 18 December 1972 to on or about 6 August 1973. He was awarded the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  On 13 September 1973, his command preferred court-martial charges against him for:

* two specifications of being absent without leave from 7 to 31 August 1973 and from 7 to 13 September 1973
* one specification of disobeying a lawful order

6.  On 24 September 1973, his command preferred additional court-martial charges against him for:

* seven specifications of failing to go at the time prescribed to his appointed place of duty
* one specification of wrongfully using reproaching words
* one specification of disobeying a lawful order

7.  On 13 October 1973, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, he acknowledged he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement on his own behalf.

9.  On 24 and 25 October 1973, his immediate, intermediate, and senior commanders recommended approval with the issuance of an Undesirable Discharge Certificate.  The intermediate commander indicated that the applicant had been detrimental to the discipline, law, and order of the battalion.  He had disregarded all efforts made by his chain of command for rehabilitation.

10.  On 1 November 1973, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  

11.  On 19 November 1973, after undergoing a separation physical and being found fully qualified for separation under chapter 10, the applicant was accordingly discharged.  

12.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with a UD.  He completed a total of 1 year, 4 months, and 1 day of creditable active military service.  No lost time is recorded on his DD Form 214.

13.  On 30 November 1978 and 2 November 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a UD is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  The applicant's hearing defect was noted on his enlistment physical examination but it was not found disqualifying for enlistment.  Furthermore, he underwent a separation physical examination and he was again found fully qualified for separation.  In any case, he could have elected trial by a court-martial if he had believed his hearing defect was a contributing cause to his misconduct.  

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110014741



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ABCMR Record of Proceedings (cont)                                         AR20110014741



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